Illegal Loans to Shareholders and Members of Management: A Study of Legislation and its Development

Abstract

Illegal loans to shareholders and members of management have long been the subject of discussion, interpretation and legislative changes. In recent years, the legislation governing illegal loans to shareholders and members of management has changed a couple of times when legislation was tightened in 2012 as a result of an increasing number of such loans in the years before, reaching its highest level in 2011. In the subsequent years until 2017, the number of illegal loans to shareholders and members of management have decreased by 95%. Our master’s thesis explains the legal framework applicable to illegal loans to shareholders and members of management, including the treatment of these loans and the legal challenges to the shareholders. It is interesting to investigate the trend in the number of loans to shareholders and members of management. If the legislative changes in 2012 have affected the development of illegal loans to shareholders and members of management? Or, whether other legislative changes may be responsible for the development? Our master’s thesis is based on raw data retrieved from the Danish Business Authority and interviews with relevant people who have considerable experience in illegal loans to shareholders and members of management. Also, examples from the business sector have been included. The above data have been analysed about the trend in illegal loans to shareholders and members of management as well as the reasons for this trend and they have been compared with FSR – Danish Auditors’ analysis of this area. The analysis shows that the trend in illegal loans to shareholders and members of management in audited companies has been declining throughout the period under analysis. This trend may partly be attributed to the legislative change in 2012 and partly to an increasing number of companies that opt out of auditing so that there has been an opacity about the actual number of illegal loans to shareholders and members of management. The problem of multiple companies opting out of auditing in relation to, among other things, illegal loans to shareholders and members of management is that this matter is no longer disclosed in the auditor’s report given that no auditor’s report is issued when companies have opted out of auditing. The conclusion is that the number of illegal loans to shareholders and members of management have decreased due to the tightening of the rules as a result of the legislative change in 2012, but to a greater extent also because several companies opt out of auditing, so the number of emphasis of matter paragraphs in this respect have dropped. Based on our conclusion, illegal loans to shareholders and members of management will probably always exist in future as, despite changes in legislation, it is still assumed that a significant amount of illegal loans to shareholders and members of management exists.